THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2020-00858

IN THE MATTER OF AN APPLICATION UNDER SECTION 14(1)

OF THE CONSTITUTION OF TRINIDAD AND TOBAGO

BETWEEN

KESTON FELIX

Claimant
AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Madame Justice Margaret Y Mohammed

Date of Delivery February 18, 2021

APPEARANCES
Mr. Lee Merry instructed by Ms. Vanita Ramroop Attorneys at law for the Claimant.
Mr. Stefan Jaikaran instructed by Ms. Amrita Ramsook Attorneys at law for the
Defendant.

JUDGMENT
Introduction
1. In 2014 the Parliament of Trinidad and Tobago passed legislation which amended
section 50 of the Police Service Act1 (“the Police Service Act”). The effect of the said
amendments empowered the Trinidad and Tobago Police Service (“the TTPS”) to take

1
Chapter 15:01

Page 1 of 38
 and retain the measurements, photographs and fingerprint information of certain
persons. No specified time was stated for the retention of the measurements and
photographs, but specified times were stated for the retention of the fingerprint data.

2. In the instant case, the Court is asked to determine whether the said amendments
namely sections 50(2), 50A(3), 50J(1), 50K(3) and 50K(4) (“the impugned provisions”)
of the Police Service Act infringes the Claimant’s right to private life under section 4 of
the Constitution of Trinidad and Tobago2 (“the Constitution”), and if they do, to
declare that these amendments are unconstitutional, illegal, null, void, invalid and are
of no effect and to make certain consequential orders.

The Claimant’s position

3. On Tuesday 16 May 2017, the Claimant was arrested by members of the Trinidad and
Tobago Police Service (“TTPS”) and subsequently charged with two summary offences,
namely using insulting language to the annoyance of persons, contrary to section 49
of the Summary Offences Act 3 and resisting arrest contrary to section 59 of the Police
Service Act.

4. During the Claimant’s detention at the Morvant Police Station on or about Thursday
18 May 2017, his face was photographed by a member of the TTPS. Photographs were
also taken of his side profiles, as well as his front profile. In addition, his height
measurement was taken and recorded and fingerprint impressions of each of his
fingers were taken. The Claimant was also asked to provide certain personal
information (such as his address, place of work and family ties) which was recorded.

5. The Claimant disputed both charges and at the end of the trial on 24 May 2019, he
was found not guilty of both charges. The Claimant has no previous convictions and
no pending criminal matters.

2
Chapter 1:01
3
Chapter 11:02

Page 2 of 38
6. The Claimant stated that he was advised by his Attorneys at law, that the impugned
provisions prohibit him from applying to the relevant authorities for the immediate
destruction of the information which was harvested from him on his arrest, despite
now being acquitted of all charges. The Claimant was also advised by his Attorneys at
law that the impugned provisions infringe on his constitutional right to private life;
they do not pursue any legitimate aim; and in any event they are clearly
disproportionate and/or unreasonable as:
a. The Commissioner of Police has no discretion to immediately destroy/remove
harvested information upon a person’s discharge or acquittal;
b. The Commissioner of Police is mandated by section 50(2) of the Police Service
Act to keep all records relating to the measurements and photographs of the
Claimant for an indefinite period of time;
c. The Commissioner of Police may only exercise a discretion to destroy a
fingerprint impression after five years from the date on which the data was
entered on the National Fingerprint Database (section 50J(1));
d. The Commissioner of Police is only mandated to destroy the fingerprint data
from the National Fingerprint Database twenty years after a person is
exonerated (section 50K(3) );
e. No distinction is made between persons suspected of or charged with serious
offences as opposed to minor offences;
f. No restrictions are placed on the dissemination of the harvested data by the
Commissioner of Police; and
g. The restrictions placed on the time period for which the harvested data shall
be held are wholly disproportionate and/or unreasonable.

7. The Claimant deposed that he is worried about future victimization by members of the
TTPS, as he had been assaulted and falsely imprisoned by the police and since that
incident, he has been traumatised. He instituted proceedings4 against the State, which
has made him even more fearful that the members of the TTPS may try to retaliate
against him. More particularly, the TTPS has personal information such as his address,

4
CV 2019-02955

Page 3 of 38
 that makes it easier for the police officers to locate him and the possession of his
photograph makes it easier for them to identify him to other police officers.

8. The Claimant stated that he has read the newspapers and watched the news on TV, in
which there are numerous and frequent reports against police officers for
misbehaviour in public office and fabrication of evidence. He attached to his affidavit
examples of these articles5 which he located on the internet namely:
(a) A TV6 Article titled “Police Officers to appear in Court for Misbehaviour in
Public Office” dated 11 June 2019;
(b) Trinidad and Tobago Guardian Article titled “$200,000 bail for cops charged
with misbehaviour in office” dated 14 October 2019;
(c) Trinidad and Tobago Guardian Article titled “Cop charged for robbing
disabled vendor, another for losing gun” dated 27 September 2019; and
(d) Newsday Article titled “$750,000 bail for policeman” dated 6 July 2016.

9. The Claimant further stated that successive Commissioners of Police have publicly
acknowledged the serious issues within the TTPS, regarding the existence of “rogue
officers” and he attached6 copies of articles in which these concerns were reported
including the following:
(a) Trinidad and Tobago Guardian Article titled “150 rogue cops suspended in
four years: CoP begs public to keep faith” dated 16 November 2016;
(b) Trinidad and Tobago Guardian Article titled “CoP points fingers at rogue
officers” dated 31 December 2019; and
(c) Newsday Article titled “CoP: We will probe rogue police” dated 11 February
2020.

10. According to the Claimant, he was advised that numerous civil cases are brought
against the State each year, concerning fabrication of evidence by police officers and
other unbecoming conduct such as assaults and false imprisonment. Many of these

5
Exhibit “K.F.1” to the Claimant’s Affidavit filed on the 2 March 2020
6
Exhibit “K.F.2” to the Claimant’s Affidavit filed on the 2 March 2020

Page 4 of 38
 cases are successful and strong pronouncements have been made by different judges
condemning the actions of police officers.

11. The Claimant stated that he has lost trust in the TTPS due to the actions of some of its
members. He is fearful about how the TTPS may use his fingerprints, height
measurement, photographs and other personal information. It is also distressing to
him that even though he was acquitted of all charges the police are still able to keep
this information. As a free citizen, he feels as though his privacy has been invaded and
he wants the said personal information to be destroyed so it cannot be accessed by
the TTPS.

12. For those reasons the Claimant has sought the following reliefs in this action:
a. A declaration that the impugned provisions infringe on the Claimant’s right
to private life;
b. A declaration that the impugned provisions are unconstitutional, illegal, null,
void, invalid and are of no effect;
c. An order that the Commissioner of Police shall immediately destroy all
information harvested from the Claimant, including all photographs,
fingerprint impressions and any other documentation in which his personal
characteristics are recorded;
d. An order that the Claimant’s fingerprint impressions, any record of any
analysis of same and any data from same shall be immediately removed from
the National Fingerprint Database;
e. An order that the Commissioner of Police shall destroy all information
harvested from persons who have not been convicted of a criminal offence
and who have no criminal charges pending before the courts, including all
photographs, fingerprint impressions and any other documentation in which
their personal characteristics are recorded;
f. An order that the fingerprint impressions, any record of any analysis of same
and any data from same of persons who have not been convicted of a criminal
offence and who have no criminal charges pending before the courts shall be
removed from the National Fingerprint Database; and

Page 5 of 38
 g. Costs.

The Defendant’s position

13. The Defendant’s position was that the action should be dismissed, as the impugned
provisions are constitutional and any interference with an individual’s right to private
life under section 4 of the Constitution of Trinidad and Tobago 7 (“the Constitution”) is
reasonably justifiable in a society that has proper respect for the rights and freedoms
of the individuals in accordance with section 13(1) of the Constitution.

14. The Defendant filed an affidavit of Sheridon Hill (“the Hill Affidavit”), in which Mr Hill
did not dispute that the TTPS obtained and recorded the Claimant’s personal
information upon his arrest. Mr Hill also explained that the information obtained from
the Claimant upon his arrest inclusive of photographs, height and weight
measurements, fingerprints, personal characteristics including particulars of any
scars, tattoos and name, address and occupation of his parents was recorded and is
currently stored on the TTPS database pursuant to section 50 of the Police Service Act.

15. Mr Hill stated that the database is necessary in order to facilitate the timely analysis
and comparison of fingerprints retrieved from crime scenes and persons in custody
and also to provide evidence before the court during trial. According to Mr Hill, the
fingerprint impressions can be retained for a minimum of five years and a maximum
of twenty years. A person seeking to have his/her records removed from the database
can apply to the Commissioner of Police requesting that same be removed and the
Commissioner of Police can then order the removal of the records, in accordance with
the provisions of section 50K (2) of the Police Service Act.

16. Mr Hill further explained that there are restrictions on the dissemination of the data
stored on the TTPS database, as well as software and firewalls to prevent unauthorized
access to data stored on the database. According to Mr Hill, no information is
disseminated without an application being made in writing to the Commissioner of

7
Chapter 1:01

Page 6 of 38
 Police and dissemination is done only after the Commissioner of Police grants
permission to do so. He stated that the database at the Criminal Records Office has
the highest level of information technology protection for security and safeguards,
and access to the said database is very limited and controlled based on an officer’s
rank and where he/she is attached, as well as a number of other considerations.

17. Mr Hill stated that the information stored on the National Fingerprint Database and
Criminal Records Office assists the courts in sentencing and bail applications.
Additionally, the existence of this database serves the purpose of satisfying the court
that the persons who have been charged and prosecuted are the correct individuals,
as fingerprint identification is the most accurate form of identification.

The impugned provisions

18. The impugned provisions of the Police Service Act were enacted by virtue of the
Miscellaneous Provisions (Administration of Justice) Act, 2014 8. It is necessary to set
out the entire section in order to appreciate the context of the impugned provisions
and for clarity I will highlight the impugned provision.

19. Section 50 of the Police Service Act deals with the power of the TTPS to take and retain
measurements or photographs of a person who is a detainee or an accused. A
“detainee” is defined in section 3 of the Police Service Act as a person who has been
arrested by the police in connection with a criminal offence and an “accused” means
a person who has been charged with an offence. Section 50 states:
(1) A police officer may take and record for the purpose of identification the
measurement and photograph of a person who is a detainee or an accused.
(2) Where the measurement or photograph taken under subsection (1) is of a
person who has not previously been convicted of a criminal offence, and
such person is discharged or acquitted by a Court, all records relating to the
measurement or photograph shall be kept by the Commissioner.

8
Act No 11 of 2014

Page 7 of 38
20. Section 50A concerns the power of the TTPS to take and retain fingerprint information.
It states:
(1) A police officer may take and record for the purpose of identification the
fingerprint impression of a person without consent –
a. where the person is a detainee or an accused; or
b. where –
i. a fingerprint impression is derived from a crime scene; and
ii. there are reasonable grounds for suspecting that the
person was involved in the commission of an offence
related to the crime scene and believing that fingerprint
analysis could confirm or disprove the suspicion.
(2) Where a fingerprint impression is taken as provided under subsection (1), the
fingerprint impression shall be analysed.
(3) The data derived from the analysis under subsection (2) shall be kept and
the Commissioner shall cause that data to be transferred to the National
Fingerprint Database.

21. Section 50 J of the Police Service Act deals with the power of the TTPS to retain the
fingerprint impression and the permitted period of retention. It provides:
(1) A fingerprint impression taken under section 50A, 50B, 50C, 50D, 50E or 50I
shall be kept for a minimum period of five years from the date on which the
data was entered into the National Fingerprint Database and thereafter the
fingerprint impression may be destroyed.
(2) Notwithstanding subsection (1), a Court may order that a fingerprint
impression that has been taken under this Act, shall not be destroyed if the
Court is satisfied that the fingerprint impression might reasonably be
required for the investigation or prosecution of an offence or for purposes of
an appeal.

22. Section 50K concerns the National Fingerprint Database. It provides:

(1) There is hereby established a database of analysed fingerprint impressions
collected under this Act, to be known as the “National Fingerprint Database”.

Page 8 of 38
 (2) The Commissioner shall have control and custody of the National Fingerprint
Database and shall, in accordance with this Act, add to and remove data from
the National Fingerprint Database.
(3) Where a fingerprint impression is taken from a person who is exonerated,
the data from the fingerprint impression shall be destroyed and removed
from the National Fingerprint Database, after the expiration of twenty years
from the date of exoneration.
(4) Notwithstanding the destruction of a fingerprint impression under section
50J, where data from a fingerprint impression is retained from the period
of destruction of the fingerprint impression to the twenty year period at
subsection (3), the data from the fingerprint impression is deemed to be the
data related to the fingerprint impression destroyed and the data may be
used as evidence in any matter involving the person to whom the data
relates.

Common ground by the parties

23. The parties agreed that the right of an individual to respect for his private and family
life is enshrined in section 4 (c ) of the Constitution, and that right, which includes the
right to private information of the person,9 is broad in scope. There was also a
consensus that no right is absolute10 and Parliament has the ability to limit rights by
enacting legislation for the peace, order and good governance of a society in
accordance with section 53 of the Constitution.

24. This agreed position is consistent with the guidance set out in the Privy Council
judgment of Suratt v AG,11 Baroness Hale explained at paragraph 58 that:
[58] It cannot be the case that every Act of Parliament which impinges in
any way upon the rights protected in ss 4 and 5 of the Constitution is for that
reason alone unconstitutional. Legislation frequently affects rights such as
freedom of thought and expression and the enjoyment of property. These are

9
S and Marper v United Kingdom App Nos 30562/04 and 30566/04 at para. 66
10
Suratt v AG [2007] UKPC 55
11
[2007] UKPC 55

Page 9 of 38
 both qualified rights which may be limited, either by general legislation or in the
particular case, provided that the limitation pursues a legitimate aim and is
proportionate to it. It is for Parliament in the first instance to strike the balance
between individual rights and the general interest. The courts may on occasion
have to decide whether Parliament has achieved the right balance.”

25. In Suratt, Baroness Hale stated that the proportionality test has two limbs namely: (a)
does the policy of the legislation pursue a legitimate object? (b) does the limitation or
restriction of the constitutional right bear a reasonable or rational relation to the
object of the legislation.

26. If an Act fails the proportionality test in Suratt and is inconsistent with sections 4 and
5 of the Constitution, it may still be valid if it is passed in accordance with section 13
of the Constitution which provides:
(1) An Act to which this section applies may expressly declare that it shall have
effect even though inconsistent with sections 4 and 5 and, if any such Act
does so declare, it shall have effect accordingly unless the Act is shown not to
be reasonably justifiable in a society that has a proper respect for the rights
and freedoms of the individual.
(2) An Act to which this section applies is one the Bill for which has been passed
by both Houses of Parliament and at the final vote thereon in each House has
been supported by the votes of not less than three-fifths of all the members
of that House.

27. Under section 13 of the Constitution, for an Act which is inconsistent with sections 4
and 5 of the Constitution to be valid, it must have been passed by a three-fifths
majority of all the members of that House and it must demonstrate that it is
reasonably justifiable in a society that has proper respect for the rights and freedoms
of the individual.

Page 10 of 38
28. The Miscellaneous Provisions (Administration of Justice) Act 2014, 12 which amended
the Police Service Act to include the impugned provisions, recognised that they were
inconsistent with sections 4 and 5 of the Constitution and that the procedural
requirement under section 13 (2) of the Constitution were satisfied. The preamble
expressly stated:
WHEREAS it is provided by section 13(2) of the Constitution, that an Act of
Parliament to which this section applies is one the Bill for which has been passed
by both Houses of Parliament and at the final vote thereon in each House has been
supported by the votes of not less than three-fifths of all the members of that
House:
And whereas it is necessary and expedient that the provisions of this Act shall have
effect even though inconsistent with sections 4 and 5 of the Constitution”

Difference between the parties

29. The central difference between the parties was with respect to the substantive
requirements under section 13 (1) of the Constitution, which is whether the impugned
provisions are reasonably justifiable in a society that has proper respect for the rights
and freedoms of individuals.

The applicable test

30. In this jurisdiction, the Court of Appeal has enunciated two approaches which a Court
may use in determining what is “reasonably justifiable in a society that has proper
respect for the rights and freedoms of individuals”.

31. In 2009, Archie CJ in AG v Northern Construction13 adopted the test advanced in

Nyambirai v National Security Authority14 and he set out the factors to be considered
in relation to the proviso under section 13 (1) of the Constitution. The factors to be
considered are whether:

12
Act No.11 of 2014
13
Civ App No 100 of 2002
14
[1996] 1 LRC 64

Page 11 of 38
 (a) The legislative objective is sufficiently important to justify limiting a
fundamental right;
(b) The measures designed to meet the legislative objective are rationally
connected to it; and
(c) The means used to impair the right or freedom are no more than is necessary
to accomplish the objective. (The “margin of appreciation” applies with
respect to this last criterion.)

32. At paragraph 22 of the judgment in Northern Construction, Archie CJ explained the

“margin of appreciation” as:
22. It is a heavy burden because the responsibility for balancing the rights of the
individual with the necessity, for the good of the society as a whole, to have
effective means of combatting crime lies in the first instance with Parliament.
Courts must not intervene merely on the basis that a judge or judges form the
view that more appropriate means could have been devised. There is always room
for reasonable disagreement or what was described during the course of
submissions as a ‘margin of appreciation’.

33. Subsequently, in the majority decision in Barry Francis and anor v the State,15
Bereaux JA adopted a different approach. At paragraphs 95 to 97 of his judgment
Bereaux JA adopted the approach set out by Lord Templeman in Morgan v The AG16
where he explained:
“[95] The decision in Morgan,17 which was decided before Nyambirai, is a decision
directly on section 13(1) of the Constitution. Lord Templeman without resorting
to any formulaic test considered whether rent restriction was a feature of
democratic societies and how democratic societies would ordinarily apply rent
legislation. In our judgment this is more consistent with the natural meaning of
the term “reasonably justifiable in a society which has a proper respect for the

15
Criminal appeal Nos 5 and 6 of 2010
16
[1988] 1 WLR 297
17
[1988] 1 WLR 297, 299 – 300.

Page 12 of 38
 rights and freedoms of the individual”. The phrase itself provides the test and it is
unnecessary to provide any further formula….

[96] The approach of Lord Templeman is the better approach to the section
13(1) considerations. In any event it is a decision of the Privy Council directly
from Trinidad and Tobago and on the very question which arises in this appeal.

[97] The Nyambirai formula adopted in de Freitas are far too narrow and
formulaic. Moreover, the third limb incorporates the proportionality principles
which are appropriate to the question of inconsistency of an Act of Parliament
with sections 4 and 5 of the Constitution rather than to reasonable justification
under section 13(1). By such a yardstick, any Act of Parliament which is
inconsistent with sections 4 and 5 because of disproportionality, will
necessarily fail the reasonable justification question. It thus renders irrelevant
the fact that the Constitution itself permits Parliament to derogate from the
fundamental rights in the manner permitted.

34. At paragraphs 99 to 100, Bereaux JA set out the approach a Court should take when
considering whether section 13 (1) of the Constitution is breached. He stated:
“[99]. In Morgan, Lord Templeman equated the phrase “a society which has a
proper regard for the rights and freedoms of the individual” with a
“democratic society” . We accept that. As an ideal for measuring what kind of
society has proper regards for the rights and freedoms of individuals of the
individual, a democracy is the most appropriate. In deciding whether section
13(1) of the Constitution is breached we can compare our legislation with
comparable legislation from other democracies.

[100]. It requires a dispassionate and detached approach by judges. Certainly

there will be a local flavour to legislation which will require judges to bear in
mind our own national and cultural peculiarities but ultimately, the
assessment must be made against norms and accepted standards of civilised

Page 13 of 38
 nations which subscribe to democratic principles, democratic systems of
governance and the rule of law.”

35. At paragraph 101, Bereaux JA explained that the approach set out in Nyambirai and
which was adopted in Northern Construction was still relevant. He stated:
[101] It is not to say that the Nyambirai approach may not be relevant.
Proportionality may be relevant to any consideration of legislation under section
13(1) of the Constitution and may be used as a tool in construing section 13(1).
But it cannot be applied inflexibly. Moreover, there may be legislation which is
disproportionate and thus inconsistent with sections 4 and (5) of the Constitution
(thus failing the proportionality test) but which may still be effectual because
democracies recognise that some disproportion in aims and policy of the
Executive, may be required in the public interest… While such legislation may be
inconsistent with the human rights provisions, their social object may be
consistent with democratic norms and ideals and therefore reasonably justifiable.

[102] It is for this reason that the Constitution permits the elected
representatives, by a requisite majority, to override the provisions of sections 4
and 5. It is also for this reason that the courts when considering the proviso in
section 13(1) of the Constitution must be deferential to the views of the elected
representatives in Parliament, recognising that there are limitations on and
derogations from the fundamental rights, which are permitted by the
Constitution.

36. In my opinion, the approach suggested by Bereaux JA is that the test set out in
Nyambirai is still applicable but it must be applied with a degree of flexibility, in
particular, if the legislation is disproportionate a Court can still find that it has effect
because it is required in the public interest. Indeed the common thread in both
Northern Construction and Barry Francis is that in considering the proviso under
section 13(1) of the Constitution, a Court must have regard to the views of Parliament
and that the Constitution permits Parliament to derogate from the fundamental rights
once certain conditions are met.

Page 14 of 38
37. The onus is on the Claimant to prove that the impugned provisions are not reasonably
justified in a society which has proper respect for the rights and freedoms of the
individual.

The submissions by the parties

38. It was submitted on behalf of the Claimant that in applying the test expounded by
Bereaux JA in Barry Francis, the Court is obliged to consider whether similar provisions
in other democratic societies, for the retention of personal data by the State after
acquittal or without any charge being laid at all, are a feature of democratic societies.
Counsel for the Claimant relied on the judgments of the European Court on Human
Rights (ECtHR) in S and Marper v United Kingdom 18 and Gaughran v UK19 and the
judgment of the Supreme Court of the UK in GC v The Commissioner of Police of The
Metropolis20.

39. The Defendant’s position was that the impugned provisions are reasonably justifiable
in a society that has proper respect for the rights and freedoms of the individual
because:
a. The legislative objective of the impugned provisions is sufficiently important
to justify limiting the right to respect for private life;
b. The measures designed to meet the legislative objective are rationally
connected to it; and
c. The means used to impair the right to private life are no more than is
necessary to accomplish the legislative objective and are within the State’s
margin of appreciation.

40. To support the aforesaid submission, Counsel for the Defendant relied extensively on
the Hansard Reports of both the Senate and the House of Representatives for the
Miscellaneous Provisions (Administration of Justice) Bill, 2014; the decisions of the

18
Appeals Nos 30562 /04 and 30566/04
19
Appeal No 45245/2015
20
[2011] UKSC 21

Page 15 of 38
 ECtHR in S and Marper and PN v Germany21; and the reasoning of Lord Steyn in the
House of Lords decision R (on the application of S) v Chief Constable of South
Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire 22 .

41. The case law referred to the court by the parties were decisions of the ECtHR and the
United Kingdom. I accept that the norms and standards applied by the ECtHR and the
United Kingdom are that of a civilised nature which subscribed to democratic
principles, a democratic system of government and the rule of law. In considering the
application of the proviso in section 13 (1) of the Constitution to the impugned
provisions, I have decided to follow the approach enunciated by Bereaux JA at
paragraph 101 in Barry Francis.

What was the legislative intent?

42. The policy which motivated the decision to introduce the impugned provisions can be
gleaned from the Hansard Reports concerning the Miscellaneous Provisions
(Administration of Justice) Bill, 2014. The said Bill sought to amend two Acts, namely
the Police Service Act and the Administration of Justice (DNA) Act 2012.

43. According to the Hansard Report from the House of Representatives on Friday April
11, 2014 on the Miscellaneous Provisions (Administration of Justice) Bill, 2014, at
p.332 – 333 it stated:
2:30 p.m.
In this country there has been a lot of legitimate concern about the detection rate
in the police service. People have criticized the police for not increasing that
detection rate. Whilst I say that is legitimate we must also listen to the cries of the
police service. They cannot be called upon to improve the detection rate in the
fight against crime in the country unless we give them the legislative legroom and
the legislative tools that they need to fight crime. And if the police would like to
retain a DNA sample and profile, even if a man is exonerated, because they have
good reason from their practical experience to make such a request, I say let us

21
App No 74440/17
22
[2004] 4 All ER 193

Page 16 of 38
 support them and I will tell you why. You know how many cases we have seen
where people get off on a technicality, you know how many cases in this country
we have seem where people get off because they have the better lawyer than the
State.
…[I]t remains a reality that there are many ways that a person can win a matter
before the court, including wiping out the witness, murdering the witness,
interfering with the jury, psychological intimidation in the court, eyeballing jurors,
all sorts of innovative, enterprising ways that a man could win a case.

So, when the police say that they want to keep it, even if you are exonerated, they
know what they are talking about. But add to that, the rather high rate of
recidivism in this country – when you see the extent to which repeat offenders in
this country are holding this country to ransom, it is a small minority of criminal
elements in this society that are holding this country to ransom. And when I
looked at the statistics provided by the police … you realize that the concept of
repeat offenders is one that is very real in this country.

So, even if the man is exonerated here, he may be a repeat offender down the
road, keep his sample and retain his profile. We have to deal with Trinidad and
Tobago’s problems which face our country and we have to deal with the raw and
harsh reality that confronts our citizenry. We cannot make law based on America
and Canada and the situation that confronts them, you know. We must base our
laws on what we confront here. Our criminals are enterprising and innovative and
ingenuous. It is a chess game between the State and the bandit, and right now
they seem to be out manoeuvring us. So, as a Parliament we must be two steps
ahead of them and we must therefore support this legislation so that the police
can retain that sample.

44. The aforesaid remarks were made in relation to the Administration of Justice (DNA)
Act, however, they are relevant in the instant matter as the impugned provisions were
amended by the Miscellaneous Provisions (Administration of Justice) Act, 2014 which
sought to amend a suite of legislation and which were piloted in both Houses of
Parliament at the same time.

Page 17 of 38
45. In the Hansard Report from the Senate on Tuesday July 15, 2014 (34th Sitting – 4th
Session – 10th Parliament) at p.598, the then Attorney General, Anand Ramlogan SC
described the legislative objective as:
[T]he legislative objective here is to give the police service the legislative tools
that they require to fight crime in this country. We are all terribly aware of the
horrific crime situation in the country. We are also aware that the detection
rate is abysmally low and totally unacceptable in Trinidad and Tobago. There
is no gainsaying in that. But that cannot be viewed in a vacuum. The police
have been saying for the past 10 years that we have been collecting fingerprint
and DNA evidence from crime scenes, but that is of no use to improve the
detection rate if we do not have a DNA database that we can get a match. And
simply put, as a matter of common sense, the wider the DNA database, the
greater the probability that you will get a match. And there is no point in having
a restricted database when the police are collecting all these samples, but they
cannot, in fact, feed it into the nodes of the system to get a realistic and
feasible result that can assist them to solve the crime.

46. The stated legislative objective for the introduction of the impugned provisions, is the
promotion of public safety by giving the TTPS the necessary tools to assist in the
detection and combatting of crime.

47. The learning emanating from the ECtHR has recognised that the State in a democratic
society, is empowered to curtail the right to privacy of an individual by obtaining and
retaining personal information such as an individual’s fingerprint information, in its
pursuit of combatting crime.

48. In S and Marper, the ECtHR agreed with the Government of the United Kingdom that
the retention of fingerprint and DNA information pursued the legitimate purpose of
the detection and prevention of crime. In S and Marper, both appellants were
arrested and charged and their fingerprints and DNA samples were collected by the
South Yorkshire Police pursuant to section 64 (1A) of the Police and Criminal Evidence
Act (PACE). Section 64 (1A) provided:

Page 18 of 38
 Where – (a) fingerprints or samples are taken from a person in connection with
the investigation of an offence, and (b) subsection (3) below does not require
them to be destroyed, the fingerprints or samples may be retained after they have
fulfilled the purposes for which they were taken but shall not be used by any
person except for purposes related to the prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution.

49. Neither party was convicted of the offence with which they had been charged but
their fingerprints and DNA samples were retained by the police. Both appellants asked
the Police Chief Constable for this data to be destroyed but their requests were
denied.

50. Both parties applied for judicial review of the decision of the Police Chief Constable on
the grounds that the retention of their fingerprints and DNA sample, as permitted by
Section 64(1A) of PACE, contravened their right to a private life under Article 8 of the
European Convention on Human Rights (“the Convention”) and their right not to be
discriminated against under Article 14 of the Convention. They also asserted that the
Police Chief Constable had acted in a manner incompatible with their rights under
Articles 8 and 14 of the Convention.

51. The Divisional Court, the Court of Appeal in the United Kingdom and the ECtHR all
found that the retention of the fingerprints and DNA information of an individual by
the State, pursued the legitimate purpose of the detection and prevention of crime.
The ECtHR noted that “[w]hile the original taking of this information pursues the aim
of linking a particular person to a particular crime, its retention pursues the broader
purpose of assisting in the identification of future offenders.” 23
52. In P.N. v Germany, the applicant was a repeat offender who had been arrested and
charged with an offence. The Dresden police ordered that the applicant’s
identification data — fingerprints, palm prints and photographs were to be collected

23
See paragraph 100

Page 19 of 38
 by the police, as permitted by Article 81b, second alternative, of the Code of Criminal
Procedure which stated:
“Photographs and fingerprints of persons suspected of having committed an
offence may be taken, even against their will, and measurements and other
similar measures carried out with regard to them, in so far as this is necessary
for the purposes of conducting the criminal proceedings or for the purposes of
the police records department.”

53. The applicant was not convicted of the offence with which he had been charged but
his identification data was retained by the police. The applicant lodged an
administrative appeal wherein he asserted that the Dresden police order was
disproportionate.

54. The applicant unsuccessfully appealed this decision in the various domestic courts in
Germany. He appealed to the ECtHR which found that the collection and storage of
the applicant’s personal data constituted a proportionate interference with his right
to respect for his private life and that it was necessary in a democratic society to
combat crime.

55. In my opinion, a feature of a democratic society is to recognise, respect and protect

an individual’s right to privacy. It is also equally a feature of a democratic society to
empower the Parliament, including the elected representatives of the citizens, to pass
legislation which can curtail the rights of an individual in instances where the public
interest outweighs those rights. Some of the most heinous crimes which can be
committed in a society has the effect of depriving an individual of his right to life
(murder), liberty (kidnapping) and property (burglary, robbery, fraud, larceny, and
other related offences). The State has a duty to enact legislation to protect citizens
from the arbitrary interference of their right to life, liberty and property and in this
regard, the stated legislative intention for the impugned provisions is consistent with
the State’s duty to the public.

Page 20 of 38
 Were the measures designed to meet the legislative objective?
56. Counsel for the Claimant argued that the measures in the impugned provisions were
not designed to meet the legislative objective, as the effectiveness of a database is
not based on the quantity of data but rather the quality of that data. Counsel argued
further that having the data of a law abiding citizen in the database, does not assist in
the detection of crime and the harvesting of such data cannot be rationally connected
to the aim of crime detection.

57. It was submitted on behalf of the Defendant, that the measures in the impugned
provisions were rationally connected to the legislative objective of assisting the police
service in the detection, combatting and prosecution of criminal matters. The
information obtained by the police pursuant to the impugned provisions, results in the
creation of large databases of measurements, photographs and fingerprint
information which can be used to quickly identify whether a person was at a crime
scene or not, and in the investigation and prosecution of a crime or in the prevention
of crime.

58. The measures introduced in the impugned provisions authorize the Commissioner of
Police to retain from a person who was arrested or charged with a criminal offence,
even after his discharge or acquittal, certain personal information such as records
relating to photographs and measurements of the said person (section 50 (2)),
fingerprint impressions and data derived from the analysis of the fingerprint
impressions (section 50A(3)).

59. The impugned provisions also enable the Commissioner of Police to transfer the data
of the fingerprint impression to the National Fingerprint Database (section 50A(3)) and
to retain the said information for a minimum of 5 years (section 50J(1)), but where a
person has been exonerated the said data must be destroyed after 20 years from the
date of exoneration (section 50 K(3)). However, if the fingerprint impression was
destroyed in accordance with section 50J, but the data relating to the said fingerprint
impression was retained from the date of destruction to the 20 year period, the data

Page 21 of 38
 may be used as evidence in any matter involving the person to who it concerns
(section 50 K(4)).

60. The effect of the impugned provisions is that they permit the Commissioner of Police
to take and retain the measurements and photographs of a detainee or an accused
even after the person has been discharged or acquitted. It also allows for the creation
of a National database of fingerprint impressions and analysis of fingerprint
impressions which identifies certain persons (section 50).

61. In S and Marper the ECtHR provided the following guidance to be adopted when
examining whether the measures adopted in the legislation met the legislative
objective. At paragraph 104 the ECtHR stated:
̎the interests of the data subjects and the community as a whole in protecting
personal data, including fingerprints and DNA information, may be outweighed by
the legitimate interest in the prevention of crime. However, the intrinsically
private character of this information calls for the Court to exercise careful scrutiny
of any State measure authorising its retention and use by the authorities without
the consent of the person concerned."

62. I accept that the Defendant has failed to put any evidence before this Court on how
the measures introduced in the impugned provisions have assisted the TTPS, in the
detection and combatting of crime since its introduction approximately 6 years ago.
In my opinion, this evidence would have been a useful indicator of assessing if or how
the measures in the impugned provisions rationally met the legislative intent.

63. However, even in the absence of such evidence, I am of the opinion that the power
given to the Commissioner of Police under the impugned provisions, to take and retain
measurements, photographs and fingerprint data of certain persons was designed to
assist the TTPS in the identification of any person who is or was involved in the
commission of a crime or to eliminate any person who they may suspect of a particular
crime. For this reasons, I am of the view that the measures contained in the impugned
provisions are rationally connected to the legislative intent.

Page 22 of 38
 Are the means used to impair the right to private life no more than is necessary to
accomplish the legislative objective and are within the State’s margin of
appreciation?
64. It was argued on behalf of the Claimant that the impugned provisions run afoul the
terms of necessity for the following reasons: (i) there are excessive time periods for
the retention of the fingerprint data and an indefinite period of retention for
measurements and photographs; (ii) there is a lack of categories of offences for which
personal information can be taken without consent; (iii) no discretion is given to the
Commissioner of Police to immediately destroy the fingerprints, measurements and
photograph of an individual after he/she has been acquitted; and (iv) no restriction is
placed on the dissemination of the harvested information by the Commissioner of
Police.

65. Counsel for the Defendant submitted that the impugned provisions are not excessive
or disproportionate as: (i) they are narrow in scope since they only affect a limited
category of persons; (ii) they do not permit the indefinite retention of fingerprints or
related data from persons who have been acquitted or exonerated and the periods of
retention of this information in the impugned provisions, are reasonable in the
context of the deficiencies of criminal justice system in this jurisdiction; (iii)the failure
by the impugned provisions to make any distinction between certain types of
offences or between persons who have been reasonably suspected to have
committed an offence, or those who have been charged and convicted and those who
have been charged and acquitted are justified, as any differentiation would frustrate
the efficacy of the database in the detecting and combatting of crime which was the
legislative purpose; and (iv) the provisions do not prevent a person who has been
exonerated to apply to the Commissioner of Police to have his information destroyed.

Scope of the impugned provisions/lack of differentiation

66. According to the learning from the ECtHR and the United Kingdom, legislation which
takes and retains information from an individual, on the basis that the retention of
this information was in the public interest in order to combat crime and which fails to

Page 23 of 38
 draw any distinction by category of offences or by a person who has been arrested
and not convicted, is not within the State’s margin of appreciation.

67. In S and Marper, the ECtHR stated that section 64(1A) of the Police and Criminal
Evidence Act amounted to a violation of Article 8 of the Convention. It concluded that
the nature of the powers of retention of the fingerprints, cellular samples and DNA
profiles of persons suspected but not convicted of offences, as applied in the case of
those applicants, failed to strike a fair balance between the competing public and
private interests and the United Kingdom had overstepped any acceptable margin of
appreciation in this regard. Accordingly, the retention at issue constituted a
disproportionate interference with the applicants’ right to respect for private life and
could not be regarded as necessary in a democratic society.

68. Although the Defendant relied on the House of Lords judgment of Lord Steyn in R (on
the application of S) v Chief Constable of South Yorkshire; R (on the application of
Marper) v Chief Constable of South Yorkshire24 , the ECtHR judgment in S and Marper
overturned the House of Lords decision and the subsequent decision by the Supreme
Court of the United Kingdom in GC, applied the ECtHR decision in S and Marper and
arrived at a similar conclusion. In arriving at the same conclusion as in S and Marper,
Lady Hale stated at paragraph 61 in GC:
“Whether and in what circumstances the police should be able to keep the
DNA samples and profiles, fingerprints and photographs of people who have
been arrested but not convicted is a deeply controversial question. The
Government is promoting the Protection of Freedoms Bill which will adopt in
England and Wales the present system in Scotland. This allows retention only
for a limited period and in respect of certain crimes. It reflects a strong popular
sentiment that the police should not be keeping such sensitive material
relating to “innocent” people, even if they are only allowed to use it “for
purposes related to the prevention or detection of crime, the investigation of
an offence, the conduct of a prosecution” (Police and Criminal Evidence Act

24
[2004] 4 All ER 193

Page 24 of 38
 1984, s 64(1A), as substituted by the Criminal Justice and Police Act 2001, s
82). If the popular press is any guide to public opinion, the decision of the
European Court of Human Rights in S and Marper v United Kingdom (2008) 48
EHRR 1169 is one which captures the public mood in Britain much more
successfully than many of its other decisions.”

69. In Gaughran, the applicant had been convicted of driving with driving with excess
alcohol contrary to the Road Traffic (Northern Ireland) Order. On the day of the
applicant’s arrest, the Northern Ireland police collected his photograph, fingerprints
and DNA sample. Though the applicant’s DNA sample was destroyed, the Northern
Ireland police indefinitely retained his photograph, fingerprints and DNA profile. The
applicant challenged the police’s continued retention of this information on the
grounds that its indefinite retention was unlawful and constituted an unjustifiable
interference with his right to respect for private life under Article 8 of the Convention.

70. The ECtHR stated that there was a narrowed margin of appreciation available to States
when setting retention limits for the biometric data, and in establishing a regime it
was important to take into account the seriousness of the offending and the need to
retain the data, and the safeguards available to the individual. 25

71. In GC v The Commissioner of Police of The Metropolis, the United Kingdom Supreme
Court found that with respect to section 64(1A) of the Police and Criminal Evidence
Act, Parliament had not intended to require a scheme whose essential elements
included an obligation that, save in exceptional circumstances, the data taken from all
suspects, regardless of their age and the nature of the alleged offence should be
retained indefinitely. It stated that:
"… section 64(1A) clearly delimits the exercise of the discretion. It must be
exercised to enable the data to be used for the statutory purposes. I would add
that the discretion must be exercised in a way which is proportionate and
rationally connected to the achievement of these purposes. Thus, for example,

25
Paragraph 88.

Page 25 of 38
 the police could not exercise the power to retain the data only of those
suspected of minor offences; or only of serious offences of a particular type;
or only of suspects of a certain age or gender; or only for a short period. But it
is possible to exercise the discretion in a rational and proportionate manner
which respects and fulfils the statutory purpose and does not involve the
indefinite retention of data taken from all suspects, regardless of their age and
the nature of the alleged offence. " 26

72. The impugned provisions do not empower the police to take and retain any type of
personal information from all persons in this jurisdiction. There is also no distinction
made in the impugned provision for the retention of personal information based on
(i) the types of offences; (ii) persons who have been arrested and later released
without charge; (iii) charged and acquitted; or (iv) charged and convicted. However,
there are different categories of differentiation created in the impugned provisions
for the retention of personal information which has been taken by the TTPS.

73. The differentiation in the impugned provisions for the retention of the measurements,
photographs and fingerprint data is made by limiting the categories of persons to
detainees and accused persons who have not been previously convicted of a criminal
offence and or discharged or acquitted by a Court. The impugned provisions also
include in Section 50A(1)(b)(i) and (ii) of the Police Service Act, another category of
persons with respect to the retention of fingerprint impressions. It permits the
retention by the police of a fingerprint impression of a person, that is derived from a
crime scene and who they have reasonable grounds for suspecting that the person
was involved in the commission of an offence related to the crime scene and they
believe that fingerprint analysis could confirm or disprove the suspicion.

74. As previously stated, a “detainee” is defined in section 3 of the Police Service Act as a
person who has been arrested by the police for a criminal offence and an “accused”
means a person who has been charged with an offence. A person can only be arrested

26
Paragraph 26

Page 26 of 38
 or charged for an offence if the police service has reasonable and probable cause to
do so. While the threshold to effect an arrest may be lower than that required before
proffering a charge, in both instances the police service can only take such action if
there is a sufficient evidential basis.

75. The other category of persons, to whom the retention of fingerprint data applies, are
persons who the police may suspect on the sole basis that the person was at the crime
scene, but the police require the fingerprint to confirm or eliminate the suspicion.
This is another limited category of persons, since the section is not general to include
all the persons whom the police suspect are involved in the crime but it limits it to
persons who were at the physical location namely the crime scene. The provision also
limits the purpose for the taking of the fingerprint for this category of persons which
is to confirm or disprove suspicion.

76. There is also a differentiation on the type of personal information, which the
impugned provisions permit the police to retain. In the case of the detainee and
accused person, the TTPS can retain photographs, measurements and fingerprints.
With respect to the other category of persons, only the fingerprint impression derived
from a crime scene can be retained.

77. In the ECtHR decision in S and Marper, the Court considered the retention of
photographs, fingerprint impression and DNA of an individual by the police. At
paragraph 120, the Court made the following comment on all three types of personal
information:
“The Court acknowledges that the level of interference with the applicants’
right to private life may be different for each of the three different categories
of personal data retained. The retention of cellular samples is particularly
intrusive given the wealth of genetic and health information contained
therein. However, such an indiscriminate and open-ended retention regime
as the one in issue calls for careful scrutiny regardless of these differences.”

Page 27 of 38
 Period of retention
78. The impugned provisions empower the Commissioner of Police to retain
measurements, photographs and fingerprint data from certain persons as set out in
section 50 of the Police Service Act. Section 50J(1) authorizes the retention of
fingerprint impressions for a minimum of five years, after which they can be
destroyed. This is unless the fingerprint impressions might reasonably be required for
the investigation or prosecution of an offence or for the purposes of an appeal
(Section 50J(2)). Section 50K(3) mandates the destruction and removal from the
database, the data obtained from analysis of a person’s fingerprint impressions, after
twenty years from the date of the said person’s exoneration.

79. With respect to the measurements or photographs of a detainee or an accused who

has not been previously convicted of any criminal offence and who has been
discharged or acquitted by a Court, Section 50 (2) permits the Commissioner of Police
to retain the said information indefinitely, as there is no time period which limits the
retention of this information.

80. In S and Marper, the ECtHR found that section 64 (1A) of PACE violated Article 8 of
the Convention on the basis that it allowed for the indefinite retention of the
fingerprints and DNA data of the applicants, who had been suspected, but not
convicted of certain criminal offences. It stated that that this was a disproportionate
interference with the respective applicantsʼ right to respect for private life and not
necessary in a democratic society and surpassed what was necessary to accomplish
the legislative objective.

81. In Gaughran, the ECtHR found that the indefinite retention of photographs (and
fingerprints/DNA) of persons who were convicted of a criminal offence could not be
justified. The Court stated at paragraph 95:
“In that connection, in respect of photographs, the Court considers it of interest
that the regime in England and Wales was changed after RMC to permit persons
convicted of less serious recordable offences, to request deletion of their
photographs after six years, with a presumption of deletion (see paragraph 39

Page 28 of 38
 above). It underlines however that the test of proportionality is not that another
less restrictive regime could be imposed. The core issue is whether, in adopting
the measure and striking the balance it did, the legislature acted within the margin
of appreciation afforded to it.

For the reasons set out above, the Court finds that the indiscriminate nature of
the powers of retention of the DNA profile, fingerprints and photograph of the
applicant as person convicted of an offence, even if spent, without reference to
the seriousness of the offence or the need for indefinite retention and in the
absence of any real possibility of review, failed to strike a fair balance between
the competing public and private interests.”

82. The legislative provisions in Gaughran and S and Marper were materially the same. In
Gaughran, the ECtHR relied on the principles it had previously explained in S and
Marper and found that the indefinite retention of the applicant’s biometric data —
DNA profile, fingerprints and photograph as a person convicted of an offence,
constituted a disproportionate interference with the applicant’s right to respect for
private life and could not be regarded as necessary in a democratic society.

83. Similarly, in P N v Germany, the ECtHR applied the principles it had previously set out
in S and Marper. As it related to the duration for the retention of the identification
data, the Court found that the domestic legislation had provided for specific deadlines
to review whether the continued storage of the data was still necessary. Accordingly,
a fair balance had been struck between the competing public and private interests and
fell within Germany’s margin of appreciation. The impugned measures constituted a
proportionate interference with the applicant’s right to respect for his private life and
could be regarded as necessary in a democratic society.

84. In the Hansard Report from the House of Representatives on Friday April 11, 2014 at
p.331, the following remarks were made in relation to the Miscellaneous Provisions
(Administration of Justice) Bill, 2014 which sought to amend inter alia the
Administration of Justice (DNA) Act, 2012 and the Police Service Act. Even though the

Page 29 of 38
 remarks were made in relation to the Administration of Justice (DNA) Act, they are
relevant because of the same 20-year retention period:
The difficulty, of course, we face is that there are so many unsolved cases in
Trinidad and Tobago, Mr. Speaker, that many of these cases have been shelved
and in cold storage. And the research shows that when in countries where they
operationalized the DNA law, it was so helpful in solving and tackling some of
those older cases that one ought to tread with some caution, once the sample
and profile is obtained, to go to destroy it.
The advice we have received, which the Government respects and accepts, is that
the longest possible period that the State, through the police service and the
Custodian, can retain these samples and profile, the better the country’s chances
are at fighting crime. (Emphasis added)

85. In the Hansard Report from the Senate on Tuesday July 15, 2014 at p. 609,
Parliament’s rationale for the 20-year retention period in tackling the particular
deficiencies in solving crimes in Trinidad and Tobago was articulated thus:
The retention policy in this Act is 20 years, Mr. President, and one must bear in
mind why 20 years. Given the fact that we have had a low detection rate in this
country for over 20 years, from Akiel Chambers come up, there are crimes that
remain unsolved in this country, that the police have advised us if they get a
proper DNA database cold cases may come to life, and we must, therefore, take
the 20-year retention policy for this amendment in the context of our own backlog
of unsolved cases. … [Y]ou see all the American programmes where they use DNA
evidence and solve cold cases dating back to more than 20 years in some cases.
But we feel a period of 20 years is reasonable, legitimate and justifiable, having
regard to what confronts us in Trinidad and Tobago, and the amount of unsolved
cases, particularly murders in this country.
The police have also advised that in many cases they have intelligence, but
there is a big difference between intelligence and admissible evidence. To
convert intelligence into admissible evidence, it takes a quantum leap in
police investigation work and sometimes they do not have the legislative tools
to make that leap. But oftentimes, the police suspect that one man – if you

Page 30 of 38
 have 100 murders, it does not mean you have 100 murderers, Mr. President.
It could be that you have five murderers, each of whom murdered 20 people,
and therefore, if we have a retention policy for 20 years, it may very well be
that it might have a multiplier effect in terms of solving cases if and when you
catch someone by virtue of a match on the DNA database.

86. The Hansard Report from the House of Representatives on Friday June 13, 2014 at
p.44-45, stated the following:
In Trinidad and Tobago, we have had the police service, they have been visiting
crime scenes and collecting data, collecting fingerprints and collecting DNA
evidence, but you know what? No one has bothered to ask the police service
what it is that is holding back the solving of those cases.
You know what it is? The gathering of evidence from a crime scene, whether it
is a fingerprint or DNA evidence, it is only as useful and as valuable as the
database or bank that they have to match it against. There is no point in
collecting fingerprints and DNA evidence from crime scenes, murder scenes,
little children being murdered, and you have nothing to match it to. Because
why? Some people say we must respect the privacy and the fundamental rights
of citizens. The time has come to rebalance the scales of justice in Trinidad and
Tobago and the Government makes absolutely no apology for saying that the
time has come for the scale to be heavier by two ounces in favour of the hard-
working, decent, law-abiding citizens of this country. [Desk thumping] And if
to do that and solve crime it means that there must be a constitutional invasion
of one’s privacy, then so be it. (Emphasis added)

87. At page 47, Senator Ramlogan SC continued:

…[T]he fact remains we have cases in this country that are unsolved that go back
to 15 and 16 years. Akiel Chambers’ name must ring an echo in this Chamber and
DNA evidence from that case is still there.
… If we had inherited, as a Government, a proficient system that was very quick
and we say we had a turnover and we could feel confident that if in five years’

Page 31 of 38
 time a crime was not solved we could destroy the DNA and fingerprint sample, no
problem, we could do that. But we do not have such a system.

88. The deficiencies in the criminal justice system in Trinidad and Tobago prior to 2014
has been alluded to in the Address of the Honourable Chief Justice, Mr. Justice Ivor
Archie, O.R.T.T. in Commemoration of the 2013/2014 Law Term of the Supreme
Court of Judicature. In describing the criminal justice system, Archie CJ stated:
I now turn to an issue that is of pressing concern to everyone in this country and
a major focus for this year, the Criminal Justice system. There can be no dispute
that the system is in crisis. Not the Judiciary, not the DPP, not the Police – the
whole system. A brief look at the High Court statistics will illustrate the point. The
42% increase in disposition of indictments from 64 to 91 in the last term is modest
having regard to the fact that indictments filed increased from 116 to 339. If we
take one non-bailable offence alone, murder, I regret to inform you that as I speak
there are 575 persons in custody awaiting trial in respect of 468 murders. With
the length of the average murder trial running into several weeks, we could have
10 judges assigned to try nothing but murder cases for the next 5 years and we
still will not have cleared the backlog (assuming that all the matters go to trial).
This is not a new problem, it existed when I assumed office and it resists efforts
to address it because up to now we have not been able to effect comprehensive
reform.

89. On that occasion, Archie CJ also spoke about the investigative capacity required in the
criminal justice system and he stated:
It has been observed in many quarters and on diverse occasions that the ability to
convict the guilty is dependent on the quality of evidence placed before the
courts, which in turn is dependent on the forensic evidence gathering capabilities
of the investigative agencies. I do not wish to debate or dispute the reasons for
disbanding SAUTT but by whatever the name or the structure, the capabilities and
training that had become available are desperately needed. I echo His Excellency’s
concern expressed on Independence Day that investigations cannot end with a
confession statement. Faster testing of narcotics and firearms is also a must. We

Page 32 of 38
 can’t have 21st century justice without 21st century police investigations and that
requires investment in and facility with the latest available technology.

90. The deficiencies in the criminal justice system in Trinidad and Tobago continues to
exist and there is a severe backlog despite the best efforts of the court system. In the
recent Address of the Honourable Chief Justice, Mr. Justice Ivor Archie, O.R.T.T. in
Commemoration of the 2020/2021 Law Term of the Supreme Court of Judicature,
Archie CJ spoke about the backlog that exists in the Criminal High Court and stated
that the "criminal justice system is near collapse owing to factors beyond the
judiciary’s control."

91. In my opinion, one of the accepted standards of a civilised nature which subscribes to
democratic principles, is the rule of law and the principle that one is innocent until
proven guilty by the State. It therefore appears to be inimical to this accepted standard
that the Commissioner of Police can retain possession for an indefinite period, the
measurements and photograph of a person who is arrested and or charged, who is
later exonerated and who has no previous convictions. While a person is not easily
identifiable by his measurements, a person is easily identifiable by a photograph. It is
for these reasons, I have found that the indefinite retention of the measurements and
photograph of an individual is not within the margin of appreciation of the State even
if applied with a great degree of flexibility.

92. On the other hand, I am of the opinion, that the respective periods of retention of the
fingerprint data of persons who have been exonerated is within the margin of
appreciation of the State and necessary when the said periods are considered against
the backdrop of the high number of serious crimes and the challenges in the criminal
justice system.

Discretion of the Commissioner of Police to destroy any of the harvested

information
93. Counsel for the Claimant argued that there is no express provision which gives an
individual, who has been exonerated, the right to apply to the Commissioner of Police

Page 33 of 38
 to destroy his personal information which was harvested by the TTPS under section
50 of the Police Service Act. Counsel also submitted that the Defendant failed to
produce any evidence before the Court on whether such applications have been
actually made by members of the public, or entertained by the Commissioner of Police
and the Defendant also did not provide any statistics on the numbers of fingerprint
impressions destroyed pursuant to such applications. Counsel further submitted that
the destruction of the fingerprint impression is of little practical effect where the
fingerprint data is still retained pursuant to section 50K of the Police Service Act.

94. It was submitted on behalf of the Defendant that there appears to be no prohibition
on persons applying to have their fingerprint impressions destroyed after the 5 year
period identified in 50J(1).

95. The custodian of the personal information obtained by the TTPS pursuant to the
impugned provisions is the Commissioner of Police. With respect to the
measurements and photograph of an individual, there is no discretion under section
50 which empowers the Commissioner of Police to destroy this information and it
appears to me that he must retain this indefinitely.

96. The Commissioner of Police has a very limited power to destroy the fingerprint
impression and this is after the expiration of 5 years from the date it was entered into
the National Fingerprint Database. This is of course if there is no order of the Court
stating that the said fingerprint impression is not to be destroyed for a particular
purpose. The Commissioner has no discretion with respect to fingerprint impressions
in the National Fingerprint Database, as he is only able to destroy it 20 years after the
date the person was exonerated.

Dissemination of the information by the Commissioner of Police

97. It was submitted by Counsel for the Claimant that the use made of photographs by
the TTPS means that there is a heightened risk that serious breaches of privacy will
occur if the indiscriminate retention of photographs is permitted. In this regard,
Counsel argued that there is a fairly recent practice of the TTPS displaying images of

Page 34 of 38
 “wanted” persons on a weekly basis on TTPS sanctioned television programmes, such
as “Beyond the Tape”, of which the Court can take judicial notice. Additionally the
TTPS often shows photographs of persons wanted for very minor offences, such as
failing to pay fixed ticket fines for traffic violations. Counsel argued further that there
is also a practice of displaying photographs of “wanted” persons on public notice
boards in Police Stations which has been the subject of litigation.27 Counsel submitted
that the effect of the impugned provisions coupled with the actions of the TTPS, is that
for the remainder of the Claimant’s life, if he is ever suspected of having committed a
minor offence such as failing to pay a traffic ticket, he runs the risk of having his mug
shot displayed on prime time national television or in a police station. However, a
person who has never been detained by the police runs no such risk and there is no
possible justification for this disparity.

98. At paragraph 13 of the Claimant’s affidavit, the Claimant asserted that he feels
betrayed by the TTPS and he does not trust them due to the actions of some of its
members. He also stated that he is fearful of what the TTPS may use his fingerprints,
height measurement, photographs and other personal information for. However, the
Claimant did not state in his affidavit that the TTPS has a practice of displaying
photographs of “wanted” persons in police stations and that there is a fairly recent
practice of the TTPS displaying images of “wanted” persons on a weekly basis on TTPS
sanctioned television programmes, such as “Beyond the Tape”. In my opinion, in the
absence of such evidence, the Defendant was deprive of the opportunity to put any
evidence before the Court to dispute these assertions made by the Counsel for the
Claimant. It is also difficult for the Court to take judicial notice of these assertions, as
there is no evidential basis that the said photographs came from the database of
photographs which is in the custody of the Commissioner of Police.

99. Paragraph 10 of the Hill Affidavit set out the safeguards with respect to the
dissemination of the measurements, photographs and fingerprint data. He stated:

27
CV 2014-00033 Derek Carrington v AG paragraph 31

Page 35 of 38
 “10.There are restrictions on the dissemination of data stored on the TTPS
database as well as software and firewalls to prevent unauthorized access to data
stored on the database. Further, no information is disseminated without an
application in writing made to the Commissioner of Police and dissemination is
done only after the Commissioner of Police grants permission to do so.
Additionally, the database at the Criminal Records Office has the highest level of
information technology protection for security and safeguards. Access to the CRO
database is very limited and controlled based on rank and where the officers are
attached along with a number of other considerations.ʺ

100. Based on the Hill Affidavit, access to the fingerprint data can only be obtained with
the permission of the Commissioner of Police, while the database which contains the
photographs and measurements can be accessed by police officers without the
permission of the Commissioner of Police.

101. In my opinion, based on the Hill Affidavit, there are adequate safeguards with respect
to the access to the fingerprint data. However, with respect to measurement and
photographs, the impugned provisions have not set out any safeguards and given that
a person can be more easily identified by a photograph, the safeguards mentioned in
the Hill Affidavit are inadequate.

Whether sections 50(2), 50A (3), 50 J(1) and 50 K (3) and 50 K (4) of the Police Service
Act are valid after applying the proviso in section 13(1) of the Constitution
102. When I weigh all the factors which a Court ought to consider in determining the
proviso in section 13(1) of the Constitution, it is my opinion that section 50 (2) which
empowers the Commissioner of Police to retain the measurements and photographs
of an individual for an indefinite period after his exoneration, infringes the right to a
private life of an individual under section 4 of the Constitution, if he has been
exonerated and has no criminal charges pending before the Court. Section 50(2) has
met the legislative intent of giving the TTPS the ability to compile a database of
photographs and measurements of persons who were either arrested or charged with

Page 36 of 38
 a criminal offence after they have been exonerated, and it has limited the said ability
to only persons who have been arrested and charged.

103. However, the said information can be used to easily identify an individual and the lack
of any safeguards namely, (i) the indefinite retention of this information; (ii) the ability
of any police officer to have access to the said information; and (iii) the failure by the
section to bestow a discretion on the Commissioner of Police to destroy the said
information within any specified period of time after a person has been exonerated,
are inconsistent with a society which has a proper respect for the rights and freedoms
of individuals in a democratic society, where one of the principles of the rule of law is
a person is innocent until proven guilty by the State.

104. In my opinion, the failure of the legislation to state a period of retention and to give
the Commissioner of Police any power with regards to the destruction of such
information, means that a person who has been acquitted remains “under the eyes”
of the police for the rest of his life even if he is innocent. Additionally, section 50(2) is
outside of the margin of appreciation for the State, as there are no safeguards to
ensure that the said information is not easily accessible by any member of the TTPS.

105. On the other hand, I have found that sections 50A (3), 50 J(1) and 50K (3) and 50K (4)
do not infringe an individual’s right to a private life and are therefore valid. I have
arrived at this position because a person is not easily identifiable by his fingerprint
impression. The purpose for the retention of the fingerprint data is consistent with
the legislative objective of the detection and combatting of crime. Additionally, there
is a limited period of retention for this data which operates after a person has been
exonerated. This period of retention may appear to be long, but in the context of the
national peculiarities in this jurisdiction as it relates to the delays in the criminal justice
system, the period of retention is within the State’s margin of appreciation. Further,
there are added measures to protect the right of the individual, such as the
Commissioner of Police has custody and control of the database which means that
access to the said information is limited and the Commissioner has a discretion to
destroy the fingerprint information as prescribed by section 50 J(1).

Page 37 of 38
 Order
106. It is declared that section 50(2) of the Police Service Act infringes on the Claimant’s
right to private life.

107. It is declared that section 50 (2) of the Police Service Act is unconstitutional, illegal,
null, void, invalid and are of no effect.

108. The Commissioner of Police shall immediately destroy the measurement, and
photograph information harvested from the Claimant.

109. The Commissioner of Police shall immediately destroy the measurement and
photograph information harvested from persons who have not been convicted of a
criminal offence and who have no criminal charges pending before the Courts.

110. The Court will hear the parties on the issue of costs on 8 March 2021 at 9:45 am virtual
hearing.

/S/ Margaret Y. Mohammed

Judge

Page 38 of 38